Patents and Innovation Economics

I have been criticized for pointing out that Austrian Economics, particularly Menger, Mises, and Hayek, is not consistent with reason, science, or Natural Rights and therefore not consistent with Capitalism. In this article I am going to apply the same standards to Milton Friedman, who is also often cited as a great advocate of freedom and capitalism.

Milton Friedman won the Nobel Prize in economics and is not part of the Austrian School of Economics. He is often classified as a monetarist or part of the Chicago School of Economics, I think the latter is more accurate. Ayn Rand was no fan of Friedman. She criticized his belief that economics must be morally neutral. In this video, Rand states that Friedman is not an advocate for Capitalism and an enemy of Objectivism.

Epistemology

Milton Friedman laid out his ideas on epistemology in the essay “The Methodology of Positive Economics” (1953). Some experts claim that the essay was a big influence on the Chicago School of Economics. In this article he essentially argues for a pragmatic approach to epistemology, which boils down to if a model (theory) is predictive it is correct.

Friedman’s methodology, which appears to justify the eclectic and pragmatic view that economists should use any model that appears to “work” regardless of how absurd or unreasonable its assumptions might appear, has been deployed in service of a rigid theoretical orthodoxy.

Friedman argues that economic models are generally judged by the reasonableness of the underlying assumptions/propositions, however he thinks this is incorrect.

In so far as a theory can be said to have “assumptions” at all, and in so far as their “realism” can be judged independently of the validity of predictions, the relation between the significance of a theory and the “realism” of its “assumptions” is almost the opposite of that suggested by the view under criticism. Truly important and significant hypotheses will be found to have “assumptions” that are wildly inaccurate descriptive representations of reality, and, in general, the more significant the theory, the more unrealistic the assumptions (in this sense).

It is easy to show Friedman’s pragmatism is mistaken. Copernican Heliocentrism with its epicycles of the planets was highly predictive, but it was not science. In science/engineering this is known as a heuristic model. Heuristic models are often created by curve fitting the observed data. They predict how a system will work within very narrow circumstance, but do not explain the underlying physics (causes). As a result, heuristic models cannot be extended or built upon, when people attempt to do so they lead to false conclusions.

Friedman’s epistemology boils down to pragmatic “pure empiricism”, which means he accepts the evidence of his senses, but denies logic and concepts. Friedman disconnects assumptions/propositions from the results of the model, which is an attack on logic. An analogy would be that it might make no sense that doing a rain dance causes it to rain, but our empirical evidence says that it is predictive of whether it rains in the next couple of days so it is a good theory. As a result, we are supposed to ignore that there is no causal relationship between the rain and the rain dance.

Friedman’s epistemology is anti-reason. In one case Friedman argued that we need freedom because of this epistemological uncertainty. “I have no right to coerce someone else, because I cannot be sure that I am right and he is wrong.”[1] This is common position of libertarians and Austrians – lack of knowledge requires freedom. This position not only undercuts all of science, it removes reason as the foundation of ethics, political philosophy, and law. It is also unadulterated nonsense.

Science

Friedman is not proposing to do science, he is proposing to collect data that never leads to knowledge. Science is based both on reality and reason/logic. Friedman wants to ignore the reason/logic side of science. While Friedman has different reasons for not proposing to do science, he is otherwise consistent with the Menger, Mises, and Hayek in rejecting science in economics. Ultimately, Friedman’s ideas on science are just a rehash of Karl Popper’s misguided concept of science.

Ethics

Friedman is consistent with the Austrians in suggesting that economics must be value free – that is devoid of ethics. Friedman argues in his paper The Methodology of Positive Economics, that for a discipline to be a science it must be free of moral judgments. However, Friedman appears to making a finer distinction of where ethics fits in science and particularly in economics.

Positive economics is in principle independent of any particular ethical position or normative judgments. As Keynes says, it deals with “what is,” not with “what ought to be.”

First, science requires a profound set of ethics that are unique in history. This ethics requires reporting the data accurately,[2] follow the data to its logical conclusion, and never ascribing non-natural causes to the observations.

Second, imagine taking Friedman’s point of view in the science of medicine. Medical doctors are not there to deal with ought to be, just to observe what is. Are doctors biased in their observations, because they bring ethics into their science?

The question of ethics in economics disappears if the correct fundamental questions of economics iare defined and therefore the definition of economics is properly defined. The most fundamental question of economics is: What is the source of real per capita increase in wealth? This leads to the correct definition of economics which is the study of how man obtains the things he needs to live. This puts the focus on human well-being, just like medicine.

Economists who pretend that they are not injecting ethics into economics are really pushing utilitarianism, often summed up as ‘the greatest good for the greatest number’. This always leads to disaster. In the short term the greatest good for the greatest number always weighs in favor of taking the property of those who create and giving it to those who do not, for instance. In fact, many philosophers who push utilitarianism also push socialism. The counter is usually that stealing people’s property is not good in the long run, but this argument rarely wins over most people.

I searched if Friedman ever mentions Natural Rights or Locke and never found anything. This is not surprising as he explicitly rejects ethics, at least in economics, and implicitly accepts utilitarianism.

Friedman is inconsistent with the founding principles of the United States, inconsistent with Objectivism, and not an advocate of Capitalism, which is the economic system that occurs when a country protects people’s Natural Rights.

Friedman, in my opinion, is highly influence by the philosophers of the Scottish Enlightenment, which would not be surprising as Adam Smith is in this group and also Jeremy Bentham, one of the big proponents of utilitarianism. [3] The Scottish Enlightenment philosophers were also highly skeptical of the efficacy of reason.

Source of Economic Growth

Friedman did not write much about what causes real per capita increases in wealth. I assume he accepted the standard neo-classical idea that increases in capital were the cause of economic growth. This does not fit the empirical evidence. Friedman’s lack of interest in the question is damning. Although, he did focus his attention on what inhibits economic growth.

Friedman spends almost no time discussing inventions or inventors. Inventions are the only way to increase real per capita incomes and define the upper bound on the standard of living in any given period of time. The fact that Friedman ignores them shows incredibly poor judgment.

Industrial Revolution

The Industrial Revolution was the first time in history that real per capita incomes started to grow consistently. Friedman’s only comments about the most important event in the history of economics was that the idea of robber barons was a myth. This is not what I would expect of a scientist, however Friedman was clear that he was not doing science.

Conclusion

Milton Friedman hardly fares any better than the Austrian Economists. Personally, I think his writing is much better than the Austrians and he is more likeable, which seemed to be part of his success in spreading his ideas.

Friedman’s ideas are inconsistent with reason, science, or Natural Rights and therefore not consistent with Capitalism. He is not proposing to do science and undermines reason with his pragmatism. However, unlike the Austrians, Milton Friedman’s supporters are not actively undermining property rights in his name.

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The New York Times published one of their standard obscure, rambling articles entitled “We’re in a Low-Growth World. How Did We Get Here?” by Neil Irwin. The author rings his hands over the slow growth of the last 15 years and concludes that we (he) has no idea why we are in this situation, but if it does not change we are in for a gloomy 21st century.

The article is a perfect illustration of the economic professions’ ignorance of what causes economic growth. What is interesting is that most economists do not really consider this an important question of economics. They waste an almost infinite number of bits on price theory with its supply and demand curves, while ignoring the most important question in economics.

The article meanders from the statement that like most things in economics it all boils down to supply and demand, ignoring that supply and demand curves are about equilibrium, not growth. Then it jumps to into a discussion that blames technology as being less effective than in the past and vaguely ties this to a slowdown in the supply side of the equation. Next it jumps to the favorite crutch of Keynesian-socialists, a lack of demand. It provides the standard Keynesian/socialists’ answers of loose money policies and fiscal stimulus that have worked in the past ,according to the article, but just do not seem to be working now, all the while ignoring the fact that neither of these have worked in the past. In the end, the article admits it has no idea why we have slow growth now.

The article illustrates that the economics profession has no idea what causes economic growth. The Keynesians argue that increasing demand creates economic growth (or at least lack of demand causes recessions), while the rest of the economics profession argues that it is increasing levels of capital. So called free market economists know what kills economic growth and their economic freedom surveys provide overwhelming evidence in this case. The US has fallen from 6th in the world to 11th in the world in economic freedom under President Obama (The downward trend started under Bush, showing this is bipartisan effort) according to this article. Correcting this is a great place to start, however this does not explain what causes economic growth.

Our level of technology is what defines (i.e., provides the upper bound on) our level of wealth. As a result, the only way to increase real per capita wealth over the long term is to invent (i.e., increase our level of technology). The book the Source of Economic Growth provides overwhelming evidence for this. Since 2000, when the slow-down started according to the New York Times, we have undermined our inventors, by undermining their property rights in their inventions. The US has also undermined the three foundations on which technology startups are built: 1) Intellectual Capital, 2) Financial Capital, and 3) Human Capital. The US has undermined the intellectual capital pillar by weakening the patent system, which leftists and libertarians continue today (see the Venue Act). The financial capital side has been undermined by Sarbanes Oxley and other financial regulation. The human capital leg has been undermined by accounting changes to stock options. I discuss how these little known changes in US law and regulations resulted in economic stagnation starting in 2000, while the US had real economic growth in the 1990’s, in my book The Decline and Fall of the American Entrepreneur.

If the US is serious about increasing its long range economic growth it needs to:

As legal academics, economists, and political scientists who conduct research in patent law and policy, we write to express our concerns about the recent push for sweeping changes to patent litigation venue rules, such as those proposed in the VENUE Act. 1 These changes would vastly restrict where all patent owners could file suit—contrary to the general rule that a plaintiff in a civil lawsuit against a corporate defendant can select any court with jurisdictional ties to the defendant. 2

Given the recent changes in the patent system under the America Invents Act of 2011 and judicial decisions that have effectively weakened patent rights, 3 we believe that Congress should adopt a cautious stance to enacting additional changes that further weaken patent rights, at least until the effects of these recent changes are better understood.

Proponents of amending the venue rules have an initially plausible-sounding concern: the Eastern District of Texas handles a large percentage of patent infringement lawsuits and one judge within that district handles a disproportionate share of those cases. The reality is that the major proponents of changing the venue rules are primarily large high-tech companies and retailers with an online presence sued in the Eastern District of Texas that would rather litigate in a small number of more defendant-friendly jurisdictions. Indeed, the arguments in favor of this unprecedented move to restrict venue do not stand up to scrutiny. Specifically:

Proponents for the VENUE Act argue that “[t]he staggering concentration of patent cases in just a few federal district courts is bad for the patent system.” 4 As an initial matter, data indicates that filings of patent lawsuits in the Eastern District of Texas have dropped substantially this year—suggesting a cautious approach until trends have stabilized. 5

Contrary to claims by its proponents, legislative proposals like the VENUE Act would not spread lawsuits throughout the country. In fact, these same proponents have found that restricting venue in a manner similar to the VENUE Act would likely result in concentrating more than 50% of patent lawsuits in just two districts: the District of Delaware (where most publicly traded corporations are incorporated) and the Northern District of California (where many patent defendants are headquartered). 6 Instead of widely distributing patent cases across numerous districts in order to promote procedural “fairness,” the VENUE Act would primarily channel cases into only two districts, which happen to be districts where it is considered much more difficult to enforce patent rights.7

Proponents for the VENUE Act have argued that the Eastern District of Texas is reversed more often by the Federal Circuit than other jurisdictions, claiming that in 2015 the Federal Circuit affirmed only 39% of the Eastern District of Texas’s decisions but affirmed over 70% of decisions from the Northern District of California and District of Delaware. 8 These figures are misleading: they represent only one year of data, mix trials and summary judgment orders, and fail to take into account differences in technology types and appeals rates in each district. In fact, a more complete study over a longer time period by Price Waterhouse Coopers found that the Eastern District of Texas affirmance rate is only slightly below the national average for all districts.9

The Federal Circuit recently confirmed in In re TC Heartland (Fed. Cir. Apr. 29, 2016) that 28 U.S.C. § 1400(b) provides that a corporate defendant in a patent case—like corporate defendants in nearly all other types of cases—may be sued in any district in which personal jurisdiction lies. Constitutional due process requires a “substantial connection” between the defendant and forum. 10 Thus, contrary to its title and the claims of its proponents, the VENUE Act does not re-establish a “uniform” litigation system for patent rights by requiring substantial ties to the forum. Instead, the Act thwarts the well-established rule that plaintiffs can bring suit in any jurisdiction in which a corporate defendant has committed substantial violations of the law.11

The VENUE Act would raise costs for many patent owners by requiring them to litigate the same patent against multiple defendants in multiple jurisdictions, increasing patent litigation overall. In recent years, the America Invents Act’s prohibition on joinder of multiple defendants in a single lawsuit for violating the same patent has directly resulted in increased lawsuits and increased costs for patent owners.12 Moreover, the VENUE Act would also result in potentially conflicting decisions in these multiple lawsuits, increasing uncertainty and administration costs in the patent system.

The VENUE Act encourages the manipulation of well-settled venue rules across all areas of law by the self-serving efforts of large corporate defendants who seek to insulate themselves from the consequences of violating the law. By enacting the VENUE Act, Congress would send a strong signal to corporate defendants that they can tilt the substantive playing field by simply shifting cases to defendant-friendly jurisdictions.

Innovators and their investors have long been vital to a flourishing innovation economy in the United States. Startups, venture capitalists, individual inventors, universities, and established companies often rely heavily on patents to recoup their extensive investments in both R&D and commercialization. We urge you to exercise caution before enacting further sweeping changes to our patent system that would primarily benefit large infringers to the detriment of these innovators and, ultimately, our innovation economy.

Sincerely,

Christopher A. Cotropia University of Richmond School of Law

Gregory Dolin University of Baltimore School of Law

Richard A. Epstein New York University School of Law

Chris Frerking University of New Hampshire School of Law

Shubha Ghosh Syracuse University College of Law

Richard Gruner John Marshall Law School

Stephen Haber Stanford University Department of Political Science

Hugh Hansen Fordham University School of Law

Chris Holman UMKC School of Law

Gus Hurwitz Nebraska College of Law

Zorina Khan Bowdoin College Department of Economics

Megan M. La Belle Columbus School of Law The Catholic University of America

Kristina M. Lybecker Colorado College Department of Economics & Business

2 See 28 U.S.C. § 1391(c)(2). See generally Ferens v. John Deere Co., 494 U.S. 516, 527 (1990) (“a plaintiff . . . has the option of shopping for a forum with the most favorable law”).

3 These include, among others: (1) administrative procedures for invalidating patents created by the America Invents Act, which have had extremely high invalidation rates, leading one former federal appellate judge to refer to these procedures as “death squads,” and (2) several decisions by the Supreme Court and the Federal Circuit that have drastically curtailed patent rights for many innovators. See Adam Mossoff, Weighing the Patent System: It Is Time to Confront the Bias against Patent Owners in Patent ‘Reform’ Legislation, WASHINGTON TIMES (March 24, 2016), http://www.washingtontimes.com/news/2016/mar/24/adam-mossoff-weighing-the-patent-system/.

6 Colleen Chien & Michael Risch, What Would Happen to Patent Cases if They Couldn’t all be Filed in Texas?, PATENTLY-O (March 11, 2016), http://patentlyo.com/patent/2016/03/happen-patent-couldnt.html. This study also finds that 11% of cases would continue to be filed in the Eastern District of Texas, concentrating nearly two-thirds of all cases in three districts. See id. The authors of this study are presently expanding their investigation to an enlarged data set, which will also capture additional aspects of the VENUE Act. Neither the data nor their results are available yet. However, we have no reason to believe that the expanded data or analysis will produce results other than what has already been shown: a high concentration of patent cases in a small number of districts.